Opinion
1 Div. 272.
January 12, 1937. Rehearing Denied February 2, 1937.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Action by Foreman Company, Incorporated, against Means Blewett. From a judgment of nonsuit, the plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in Foreman Co. v. Blewett, 234 Ala. 64, 173 So. 397.
Amended count 4 of the complaint is as follows:
"Plaintiff claims of the defendant the further sum of Eight Hundred Seventy-Five Dollars with interest thereon from to-wit December 21st, 1932, for that on towit December 1st, 1932, plaintiff agreed to sell and defendant agreed to purchase five hundred shares of the capital stock of the NuGrape Company at and for the sum of One and 75/100 Dollars per share. And plaintiff alleges that the said contract between it and the defendant was in writing as follows, viz: On to-wit December 1st, 1932, the defendant sent plaintiff a written telegram in words and figures as follows:
"Foreman and Co Inc "Suite 213 Calif Blg. "Denver Colo
"Send Five Hundred Nugrape as you quote at one Dollar Seventy Five Cents at once answer.
"Dr. Means Blewett"
and plaintiff alleges that in answer to said telegram and on December 1, 1932, it accepted said order by sending defendant a written telegram in words and figures as follows:
"Dr Means Blewett "Citronelle "Alabama
"Sold you Five Hundred Nugrape at One Seventy Five advise bank you want stock shipped Draft to also have Bank guarantee payment of Draft to Colorado National Bank Denver
"Foreman and Company Inc."
"And plaintiff alleges that defendant on December 1, 1932, in answer to said telegram caused the Citronelle State Bank to send to plaintiff a written telegram in words and figures as follows:
"Foreman and Co. Inc. "Suite 213 Calif Bldg "Denver Colo
"Instructed to request you ship Five Hundred shares NuGrape at One Seventy Five issued to Means Blewett attached to Draft if genuine will pay
"Citronelle State Bank"
"And plaintiff alleges that pursuant to said contract it on the same day the said telegram was received ordered the said capital stock to be issued to the defendant, Dr. Means Blewett, and on to-wit December 21st, 1932, tendered to the defendant the said capital stock and defendant refused to pay for same, wherefore plaintiff alleges that defendant is indebted to it in the said sum of Eight Hundred Seventy-five Dollars with interest; Hence this suit."
Plea 3, for answer to the complaint, sets out the same telegrams reproduced in count 4, and also the following:
"Denver Colo Dec. 1 1932 "1 PM 10 32
"Dr. Means Blewett "Citronelle Ala
"Received guarantee from bank rest assured stock is genuine but there will be few days delay due to fact you want stock issued your name can offer only six hundred shares more same price same terms subject immediate wire, acceptance only
"Foreman and Co. Inc."
"Foreman Co 12-2-32 "Suite 213 Calif Bldg "Denver Colo
"On account delay cancel order for Nugrape stock
"Dr Means Blewett."
The plea concludes: "And defendant alleges that the plaintiff did not tender him the said shares of stock until some three weeks after the said order of cancellation was sent; wherefore the defendant says the plaintiff should not recover in this cause."
Demurrer to plea 3 was overruled, and demurrer to replication was sustained. On account of such rulings, plaintiff took a nonsuit and appeals.
M. F. Dozier and B. F. McMillan, Jr., both of Mobile, for appellant.
It is competent for parties to a contract to modify or waive their rights under it and ingraft new terms upon it. Warley F. P. Co. v. Louisville N. R. Co., 17 Ala. App. 263, 84 So. 311; Johnson v. McFry, 14 Ala. App. 170, 68 So. 716; Gray Sons v. Satuloff Bros., 213 Ala. 526, 105 So. 666. The modification of a contract is a new contract between the parties. 13 C.J. 615. When no time is fixed for the performance of a contract, the law presumes that it must be done within a reasonable time. Erswell v. Ford, 205 Ala. 494, 88 So. 429; Missouri Bridge I. Co. v. Stewart, 134 Mo. App. 618, 114 S.W. 1119; 13 C.J. 596. Parties may be held to acceptance of the modification of a contract by their conduct. Hertz v. Montgomery Journal Pub. Co., 9 Ala. App. 178, 179, 62 So. 564.
Gordon, Edington Leigh and Leo H. Pou, all of Mobile, for appellee.
The pleas presented a good defense to the complaint and show that the plaintiff itself voided the alleged contract. The alleged contract was void under the statute of frauds contained in the Uniform Sales Act. Gen. Acts 1931, p. 570. Green v. Firestone T. R. Co., 26 Ala. App. 454, 161 So. 833. There was no modification of the alleged contract as to time of delivery.
The pleadings necessary for a consideration of this appeal are contained in count 4 of the complaint, as amended, and defendant's plea 3, which sets out the entire alleged contract between the parties.
The entire negotiation for the sale and purchase of the stock described in the complaint was carried on by telegrams, evidencing the necessity for prompt action, the first being dated December 1, 1932, and the last December 2, 1932. The first telegram was an offer to purchase 500 NuGrape stock "at once." The second telegram was from plaintiff to defendant, accepting the offer, which included prompt delivery. The third was a telegram from the Citronelle State Bank, guaranteeing the payment of the purchase price. The fourth telegram was from plaintiff to defendant, undertaking to modify the time of delivery, and the fifth telegram was from defendant to plaintiff, canceling the order by reason of the delay in delivery. All of which evidences the fact that time was of the essence of the contract and that, in view of telegram No. 4, the defendant had a right to cancel the order. Either that, or it is very apparent that the minds of the parties had never met upon the necessary terms of the contract here undertaken to be enforced.
We see no necessity for an extended discussion or the citation of authority. The pleadings speak for themselves, and that is the view taken by the trial court in its rulings on the various pleadings seeking an issue.
The judgment is affirmed.
Affirmed.